13-1668-CV In the United States Court of Appeals
for the Second Circuit
AMERICAN ATHEISTS, INC., DENNIS HORVITZ, KENNETH BRONSTEIN, JANE EVERHART,
Plaintiffs-Appellants,
MARK PANZARINO, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, WORLD TRADE CENTER MEMORIAL FOUNDATION/NATIONAL SEPTEMBER 11
MEMORIAL AND MUSEUM, Defendants-Appellees,
STATE OF NEW JERSEY, GOVERNOR CHRIS CHRISTIE, SILVERSTEIN PROPERTIES, INC., LOWER MANHATTAN DEVELOPMENT
CORPORATION, CHURCH OF THE HOLY NAME OF JESUS, BRIAN JORDAN, WORLD TRADE CENTER PROPERTIES, LLC,
Defendants.
On Appeal from the United States District for the Southern District of New York
Brief Amicus Curiae of The Becket Fund for Religious Liberty in Support of Defendants-Appellees and Affirmance
Eric S. Baxter Asma Uddin Diana Verm The Becket Fund for Religious Liberty 3000 K St. N.W., Ste. 220 Washington, DC 20007
(202) 955-0095
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DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, The Becket
Fund for Religious Liberty states that it has no parent corporation and that no
publicly held corporation owns any part of it.
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TABLE OF CONTENTS
Page(s)
DISCLOSURE STATEMENT .............................................................................. i
TABLE OF AUTHORITIES ............................................................................... iv
INTEREST OF THE AMICUS ............................................................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT ................................... 1
ARGUMENT ........................................................................................................ 4
I. The Court lacks jurisdiction because Appellants all lack standing. ................ 5
A. The Individual Members lack taxpayer standing. ...................................... 6
1. Taxpayer standing requires a direct connection between a tax and the alleged injury. .................................................................. 7
2. There is no nexus between the alleged funding and the Taxing and Spending Clause. ................................................................ 8
3. There is no sufficient nexus between the alleged funding and the Establishment Clause. ............................................................. 10
B. The Individual Members also lack “offended observer” standing. .......... 12
1. The Individual Members have suffered no cognizable injury as citizens and residents. ........................................................... 12
2. The Individual Members’ alleged injuries are not redressable by the remedies they seek. ............................................... 19
C. American Atheists lacks standing as an organization. ............................. 21
II. The Museum’s display of the artifact is neither an establishment as originally understood nor as recognized by this Court. ............................ 23
A. At the founding, an establishment consisted of government control, government coercion, government funding, or assignment of government powers to church authorities. ........................ 24
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B. The Museum’s display of the artifact does not fall within any recognized category of establishment. .............................................. 25
1. The Museum’s display of the artifact does not constitute impermissible government funding. .................................................... 25
2. The Museum’s display of the artifact does not constitute government control over religious groups’ practices. ......................... 27
3. The Museum’s display of the artifact is not government coercion of private parties to engage in religious activity. ................. 28
4. The Museum’s display of the artifact does not impermissibly cede government powers to religious organizations. .......................... 29
CONCLUSION ................................................................................................... 30
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TABLE OF AUTHORITIES
CASES Page(s)
Allen v. Hickel, 424 F.2d 944 (D.C. Cir. 1970) ..............................................................................27
Allen v. Wright, 468 U.S. 737 (1984) ................................................................................................ 4
Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49 (2d Cir. 2001) ...................................................................................11
Bldg. & Const. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138 (2d Cir. 2006) .................................................................................21
Brooklyn Inst. of Arts & Sci. v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999) ....................................................................27
Cacchillo v. Insmed, Inc., 638 F.3d 401 (2d Cir. 2011) .............................................................................6, 15
Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) ..............................................................................27
Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002) .................................................................................29
Cooper v. U.S. Postal Service, 577 F.3d 479 (2d Cir. 2009) ............................................................... 14-15, 17, 19
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................................................................ 8
DeStefano v. Emergency Hous. Grp., Inc., 247 F.3d 397 (2d Cir. 2001) .................................................................... 10, 25, 26
Doremus v. Board of Education of Borough of Hawthorne, 342 U.S. 429 (1952) ........................................................................................ 10-11
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Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997) ...................................................................................27
Flast v. Cohen, 392 U.S. 83 (1968) ............................................................................................7, 10
Frothingham v. Mellon, 262 U.S. 447 (1923) ................................................................................................ 7
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) ............................................................................................8, 9
In re U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989) ....................................................................... passim
Incantalupo v. Lawrence Union Free Sch. Dist. No. 15, 380 F. App’x 59 (2d Cir. 2010) ............................................................................26
Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) .................................................................................10
Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991) .................................................................................10
Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) ..............................................................................................29
Lee v. Weisman, 505 U.S. 577 (1992) ..............................................................................................28
Maricopa-Stanfield Irr. & Drainage Dist. v. United States, 158 F.3d 428 (9th Cir. 1998) .................................................................................. 5
Mehdi v. U.S. Postal Serv., 988 F. Supp. 721 (S.D.N.Y. 1997) .......................................................................23
Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ..............................................................................................29
Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) .................................................................................27
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Southside Fair Housing Community v. City of New York, 928 F.2d 1336 (2d Cir. 1991) .................................................................. 13, 15, 17
Sullivan v. Syracuse Hous. Auth., 962 F.2d 1101 (2d Cir. 1992) ....................................................................... passim
Thompson v. Cnty. of Franklin, 15 F.3d 245 (2d Cir. 1994) ...............................................................................4, 18
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ...................................................................................... passim
Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003) ................................................................................27
Van Orden v. Perry, 545 U.S. 677 (2005) ..............................................................................................27
Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068 (2d Cir. 1996) ...............................................................................28
Zelman v. Simmons–Harris, 536 U.S. 639 (2002) ..............................................................................................26
STATUTES
U.S. CONST. art. III, § 2 .............................................................................................. 4
OTHER AUTHORITIES
https://www.govtrack.us/congress/bills/112/hr2865 ................................................. 7
Michael W. McConnell, Establishment and Disestablishment at the Founding, Part 1: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003) ............................................................ 24-25
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INTEREST OF THE AMICUS1
The Becket Fund for Religious Liberty is a non-profit, public-interest legal and
educational institute that protects the free expression of all religious traditions. It
has represented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Santeros,
Sikhs, and Zoroastrians, among others, in lawsuits across the country and around
the world.
The Becket Fund’s concern here is that failure to scrutinize Appellants’
standing to challenge the display of a cross-shaped artifact in a historical museum
would allow the most cantankerous adherents to the most extreme separatist views
of the Establishment Clause to challenge even the tiniest manifestation of religion
anywhere in the public square. If allowed to stand, this limitless approach to the
application of judicial power would ultimately pervert the purposes and impair the
protections that the Establishment Clause embodies.
INTRODUCTION AND SUMMARY OF ARGUMENT
This lawsuit, now ongoing for more than two years, claims that the anticipated
display in the National September 11 Museum of a single artifact—a cross-shaped
steel beam recovered from Ground Zero—is an unlawful establishment of religion.
Appellants American Atheists, Inc. and three of its members, Kenneth Bronstein, 1 No counsel for any party authored this brief in whole or part. No party or counsel for any party contributed money intended to fund preparing or submitting the brief. No person other than amicus curiae, its members, or its counsel contributed money intended to fund preparing or submitting this brief.
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Dennis Horvitz, and Jane Everhart (the “Individual Members”), object—as
taxpayers and citizens of New York—to the Museum’s display of the artifact,
which was discovered by rescue workers at Ground Zero and treated by many as a
source of inspiration among the horrors inherent in their recovery effort. The
Museum plans to display the artifact in a historical exhibit entitled “Finding
Meaning at Ground Zero,” which will portray how rescue workers struggled to
deal with the harrowing circumstances under which they were laboring. The
Individual Members have failed to show an injury from the display that would
entitle them to sue to ban it. They have failed to show that the display is directly
supported by their taxes, and thus cannot establish “taxpayer” standing. And they
have failed to show that the display directly and personally injures them, defeating
“citizen” or “offended observer” standing.
Because none of the Individual Members has a right to challenge the Museum
display, American Atheists also lacks that right as an organization. Its
unsubstantiated allegation that the Museum refused its offer to contribute an
“atheist” memorial for display—even if accepted as true—is insufficient to create
standing. It is undisputed that the Museum only displays artifacts from Ground
Zero, not religious memorials generally. And American Atheists has failed to
identify any “atheist” artifact that the Museum has refused to display. It has no
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standing to sue the Museum for refusing to display items irrelevant to the
Museum’s mission.
The frivolousness of this lawsuit is perhaps best illustrated by the American
Atheists’ own mid-litigation course correction, when they abruptly disavowed any
intent to ban the display, claiming they are now “convinced . . . that it [is] not the
most desirable remedy.” Appellants Br. 2. Promising not to “re-write history or rip
from museums all acknowledgment of our country’s historical relationship with
faith,” they now seek only some unidentified “contextual adjustment” to the
display. See id. They analogize the so-called “contextual” harm they now seek to
remedy to “the effect of juxtaposing, as representing Christianity . . . a display
consisting of a male giraffe, which averages 17-feet in height
(http://whozoo.org/Intro98/natarale/natgiraffe2.htm)” against a display of “three
kittens” (presumably representing atheists). See Appellants Br. 28. (web link in
original). As if giraffes had any Internet advantage over kittens!
But the American Atheists’ change in strategy is as serious as their analogy is
silly. Their concession regarding the impact—to “re-write history” and “rip from
museums” any indicia of religion—of the relief they originally sought underscores
what is at stake and the need for a meaningful standing doctrine. Plaintiffs should
not be permitted to abuse the power of the courts to satisfy their personal
Goldilocks-like interest in calibrating exactly how much religion is acceptable in
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public. Absent direct and personal injuries, which do support jurisdiction in
appropriate cases, such matters may appropriately be left to the political process
and to an expected level of mutual tolerance among the public generally. The
Museum’s display of the Ground Zero cross is so non-injurious and so far removed
from the concerns of the Establishment Clause that this Court should dismiss for
the American Atheists’ lack of standing.
ARGUMENT
The doctrine of standing arises from Article III, section 2, of the United States
Constitution, which limits “judicial Power” to actual “Cases” and “Controversies.”
U.S. CONST. art. III, § 2; Allen v. Wright, 468 U.S. 737, 750 (1984). To determine
whether a proper “case” or “controversy” exists, courts utilize a “three-pronged
inquiry.” In re U.S. Catholic Conference (“Catholic Conference”), 885 F.2d 1020,
1023 (2d Cir. 1989). First, a plaintiff must show “an injury in fact that is both
concrete in nature and particularized to them”; second, “the injury must be fairly
traceable to [the] defendants’ conduct”; and third, “the injury must be redressable
by removal of defendants’ conduct.” Id. at 1023-24 (citations omitted). If any one
element fails, the court “has no subject matter jurisdiction over the case.” Id. at
1023.
Of the courts’ jurisdictional limitations, standing is “perhaps the most
important.” Thompson v. County of Franklin, 15 F.3d 245, 247 (2d Cir. 1994)
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(quoting Allen, 468 U.S. at 750). It cannot be waived, and may be raised at any
time, by any party or by the court sua sponte. Id. at 248-49. Even when the issue is
presented for the first time on appeal by amicus, a court still “must consider
standing.” Maricopa-Stanfield Irr. & Drainage Dist. v. United States, 158 F.3d
428, 433 (9th Cir. 1998).
In their Complaint, the Individual Members alleged both taxpayer and citizen
standing. American Atheists alleged associational standing on behalf of its
members, plus standing on its own behalf. Part I of this brief demonstrates that
none of these theories creates standing in this matter. Part II provides some
historical context for the Establishment Clause, demonstrating that the American
Atheists’ alleged concerns about the Museum’s display do not implicate the
Establishment Clause in any way, and that the Court should thus have no pause in
dismissing their claims.
I. The Court lacks jurisdiction because Appellants all lack standing.
In the Complaint, the American Atheists allege that many of their members,
including the Individual Members, are “residents, citizens, and taxpayers of the
United States and the State of New York” and have been injured by seeing “the
cross, either in person or on television” and by “having a religious tradition not
their own imposed upon them.” J.A. 20-21. But these allegations, even combined
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with the meager evidence adduced on summary judgment, are insufficient to grant
the American Atheists standing.
A. The Individual Members lack taxpayer standing.
The Complaint asserts that, in 2009, “the September 11 Memorial and Museum
received [almost $80 million] in unrestricted government funding,” and almost $70
million in 2010. J.A. 27. It also avers that, in 2010, Congress passed a law ordering
the National Mint to strike September 11 commemorative medals, with “[t]en
dollars from the sale of each medal . . . to be donated” to “the Memorial and
Museum.” J.A. 28. The American Atheists concluded that “Congress has,
therefore, utilized its taxing and spending power to support the September 11
Memorial and Museum,” J.A. 28, which—as discussed below—is a necessary
element of taxpayer standing.
At summary judgment, American Atheists proffered scant evidence to support
these allegations. See Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011)
(on summary judgment “plaintiff cannot rest on such mere allegations, [as at the
pleading stage] but must set forth . . . specific facts”). It cites a press release that
the State Assembly had passed a bill “making a significant commitment of public
funds to the World Trade Center Memorial,” Appellants Br. 13-14, but fails to note
that the bill was vetoed by Governor Pataki. See J.A. 333. It similarly identified a
United States Senate bill—H.R. 2865—proposing $20 million in “technical and
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financial assistance to the Museum,” but fails to note that that bill died in
committee.2 Appellants Br. 16-17; J.A. 333 n.7.
American Atheists does, however, cite testimony from the Museum Director,
Alice Greenwald, acknowledging receipt of “an $80 million capital grant from the
State of New York . . . through Governor Pataki’s office” and a $250 million grant
from HUD through the Lower Manhattan Development Corporation for “the
capital construction of the memorial and the museum.” J.A. 135-36; J.A. 333.3
None of this is sufficient to establish taxpayer standing.
1. Taxpayer standing requires a direct connection between a tax and the alleged injury.
As a general rule, “taxpayers do not have standing to challenge how the federal
government spends tax revenue.” Catholic Conference, 885 F.2d at 1027 (citing
Frothingham v. Mellon, 262 U.S. 447, 488 (1923)). The only exception is where a
taxpayer specifically challenges “exercises of congressional power under the
taxing and spending clause of Art. I, § 8, of the Constitution.” Flast v. Cohen, 392
U.S. 83, 102-03 (1968) (emphasis added). It is not sufficient to allege “an
incidental expenditure . . . in the administration of an essentially regulatory
statute.” Id. (emphasis added). Nor is there taxpayer standing to challenge
2 See https://www.govtrack.us/congress/bills/112/hr2865. 3 The Museum’s director also testified that, since receiving these capital grants, the Museum has not received any public funds. J.A. 136.
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“expenditures resulted from executive discretion.” Hein v. Freedom From Religion
Found., Inc., 551 U.S. 587, 605 (2007).
Furthermore, the exception has applied only where the congressional
expenditure ostensibly conflicts with the Establishment Clause. Id.; see also
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347 (2006) (“[O]nly the
Establishment Clause has supported federal taxpayer suits.”). The same limitations
apply “with undiminished force to state taxpayers.” Id. at 345.
2. There is no nexus between the alleged funding and the Taxing and Spending Clause.
The American Atheists have failed to adduce any evidence that the public
funding allegedly received by the Museum is the direct result of legislative “tax
and spend” action.
Although the Complaint alleges that the Memorial and Museum received
around $80 million in unrestricted government funds in 2009 and around $70
million in 2010, J.A. 27, the American Atheists have provided no further details or
evidence to meet their burden of proof on summary judgment. Thus, there is no
basis for the Court to determine whether these specific allegations are true or
whether the alleged funding arose directly from legislative taxing and spending.
Similarly, the New York State Assembly Bill that allegedly authorized public
funding, Appellants Br. 13-14, was vetoed by the governor, J.A. 333. And the one
federal funding bill identified, Appellants Br. 16-17, was never voted on by
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Congress, see supra n.4; J.A. 333. Bills are not laws. Thus, the American Atheists
also fail to show a nexus to government taxing and spending. And the bill
authorizing the sale of a September 11 commemorative medal, with a $10
surcharge for the Memorial and Museum, obviously does not implicate taxing and
spending either. Thus, none of these alleged, once-potential, or actual sources of
public funding for the Museum can give rise to taxpayer standing.
The American Atheists’ reliance on the Museum director’s testimony regarding
receipt of a $250 million grant from HUD and an $80 million grant from Governor
Pataki’s office is equally unavailing. Again, they have failed to allege or
demonstrate that either of these grants originated from direct legislative
distribution of tax dollars. It is not sufficient to assume that, at some point in time,
the funds must have been generally authorized by the New York Legislature or
U.S. Congress. Taxpayer standing arises only from direct legislative branch
spending. Valley Forge Christian Coll. v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 479 (1982) (taxpayer standing applies to
“congressional action,” not decisions left to agency discretion); Hein, 551 U.S. at
605 (no taxpayer standing for executive branch spending). The grants at issue were
issued to the Memorial and Museum by HUD, a federal agency, and Governor
Pataki, the state executive. That is not sufficient to show taxpayer standing. See id.
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3. There is no sufficient nexus between the alleged funding and the Establishment Clause.
The American Atheists’ failure to demonstrate funding through Congress’s
taxing and spending powers or the New York equivalent is not the only flaw in
their bid for taxpayer standing. They have also failed to establish a sufficient nexus
with the Establishment Clause. Cases upholding taxpayer standing have involved
direct congressional funding of religious institutions or programs. See, e.g., Flast,
392 U.S. at 87 (textbook funding for religious schools); Katcoff v. Marsh, 755 F.2d
223, 231 (2d Cir. 1985) (military chaplaincy); Lamont v. Woods, 948 F.2d 825, 830
(2d Cir. 1991) (aid for religious schools and hospitals abroad); DeStefano v.
Emergency Hous. Grp., Inc., 247 F.3d 397, 405 (2d Cir. 2001) (state funding for
Alcoholics Anonymous religious programming). Here, in contrast, the only public
funding identified was in the form of “capital grant[s]” for “capital construction of
the memorial and the museum.” J.A. 136; see also Appellants Br. 17. American
Atheists has not alleged, and there is no evidence to support, that the Memorial and
Museum are religious institutions or that the grants were directed to religious
activities. Designated for “capital construction,” the grants have no nexus to the
Establishment Clause.
It is irrelevant that the Museum plans to exhibit the artifact—even assuming
that displaying it were to take on some religious significance. In Doremus v. Board
of Education of Borough of Hawthorne, the Supreme Court denied standing to a
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taxpayer who challenged a law that “provide[d] for the reading, without comment,
of five verses of the Old Testament at the opening of each public-school day.” 342
U.S. 429, 430 (1952). Although the taxpayer alleged a violation of the
Establishment Clause, the Court found no sufficient nexus between that Clause and
the plaintiff’s status as a taxpayer: there was “no averment that the Bible reading
increase[d] any tax they do pay or that as taxpayers they are, will, or possibly can
be out of pocket because of it.” Id. at 433. The Court emphasized that a plaintiff
must establish a “good-faith pocketbook action.” Id. at 434. Otherwise, the
grievance sought to be litigated is “not a direct dollars-and-cents injury,” but
merely a “religious difference.” Id. at 434-35.
Similarly, here, because there is no “measurable appropriation” of the grants
that is “occasioned solely by the activities complained of,” there is no link to the
Establishment Clause sufficient to create taxpayer standing. Id. at 434; see also
Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 74 (2d Cir. 2001) (general
funding of school and teachers “not sufficient” to create taxpayer standing to
challenge religious activities at school; “what was required . . . was a showing of a
measurable appropriation or loss of revenue attributable to the challenged
activities”).
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B. The Individual Members also lack “offended observer” standing.
The Individual Members’ assertion that they have been injured by having “seen
the cross, either in person or on television,” and by “having a religious tradition not
their own imposed upon them,” J.A. 21, is also unavailing. They have failed to
show a cognizable injury or that their injury will be redressed by this lawsuit.
1. The Individual Members have suffered no cognizable injury as citizens and residents.
Offended observer standing is a controversial category of standing, increasingly
questioned by the courts. The Supreme Court most recently addressed and rejected
the theory in Valley Forge Christian College. The plaintiffs, who were residents of
Virginia, Maryland, and Washington, D.C., challenged a federal agency’s decision
to give property valued at $577,500 to a religious order for no payment. 454 U.S.
at 468. The property was located in Chester County, Pennsylvania, id. at 486-87,
which borders Maryland. The plaintiffs “learned of the transfer through a news
release.” Id. at 487.
The Court of Appeals had granted the plaintiffs standing as “separationists,”
“by virtue of an injury in fact to their shared individuated right to a government
that shall make no law respecting the establishment of religion.” Id. at 482.
(citations and internal quotation marks omitted). The Supreme Court reversed and
denied standing, because the plaintiffs failed “to identify any personal injury
suffered by them . . . other than the psychological consequence presumably
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produced by observation of conduct with which one disagrees.” Id. at 485
(emphasis added). Although—as here—it was “evident” that the plaintiffs were
“firmly committed to the constitutional principle of separation of church and
State,” the Court concluded that standing “is not measured by the intensity of the
litigant’s interest or the fervor of his advocacy.” Id. at 486. Mere psychological
offense—regardless of its intensity—was insufficient to support standing. See also
Catholic Conference, 885 F.2d at 1025-26 (rejecting standing where primary injury
was “discomfiture at watching the government allegedly fail to enforce the law
with respect to a third party”).
This Court has since hewed closely to the rulings in Valley Forge and Catholic
Conference by granting plaintiffs standing to challenge alleged Establishment
Clause violations only where the plaintiffs have a “direct and personal stake in the
controversy.” Sullivan v. Syracuse Hous. Auth., 962 F.2d 1101, 1107 (2d Cir.
1992). Thus, in Southside Fair Housing Community v. City of New York, the Court
granted plaintiffs standing to challenge a land sale by New York City because the
property at issue was in their “own backyards” and they claimed they were “being
displaced by the creation of an exclusive white Hasidic enclave” as a result. 928
F.2d 1336, 1342 (2d Cir. 1991) (citation omitted). This “distinct and palpable
injury” was sufficient to warrant standing. Id. at 1341-42.
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Similarly, in Sullivan, plaintiff Sullivan had standing to sue the Syracuse
Housing Authority for contracting with a Christian rescue mission to run an
afterschool program in the community center at his public housing complex,
Benderson Heights. 962 F.2d at 1110. The rescue mission used the community
center four afternoons a week, with an hour of Bible study at the end of each day.
Id. at 1104. The Court found standing because Sullivan “reside[d] at Benderson
Heights” and had the right “as a tenant” to use the community center, which was
“functionally analogous to [his] own home.” Id. at 1107-08. Thus, Sullivan was
“not a simple bystander, . . . complaining of the nonobservance by others of the
Constitution.” Id. at 1108. He had a “direct and personal stake in this controversy.”
Id. at 1108.
Finally, in Cooper v. U.S. Postal Service, Cooper was granted standing to
challenge religious displays at his local Contract Postal Unit (CPU). 577 F.3d 479
(2d Cir. 2009). CPUs are U.S. postal facilities, operated on private property by
private parties under contract with the U.S. Postal Service, which has a “complete
monopoly” over the carriage of letter mail. Id. at 484, 493. The purpose of CPUs is
to “furnish postal services to places where it is not otherwise geographically or
economically feasible to build and operate official ‘classified’ post offices.” Id. at
485. The private operator of the CPU in Cooper’s neighborhood had extensive
religious displays that verged on proselytizing. See id. at 487-88.
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Mr. Cooper testified that he used the CPU “because it was closer to his home
than the next available post office,” that the displays made him “very
uncomfortable,” and that “when he registered a complaint, he ‘was told that [he]
could go somewhere else if [he didn’t] like it.’” Id. at 488. Because Cooper was
“using the postal facility nearest his home, and that upon complaint, he was
advised to alter his behavior,” the Court deemed his injury sufficiently “direct and
personal” to confer standing. Id. at 491.
The Individual Members’ alleged injuries in this case are like those in Valley
Forge and Catholic Conference. None of the Individual Members have shown any
injury that is “direct and personal” like the injuries in Southside Fair Housing
Community, Sullivan, or Cooper.
First, Mr. Horvitz conceded that he has “never seen the cross,” has never
“attempted to visit the September 11th Museum,” and has “no reason to think he
would be denied access” to the Museum in the future. J.A. 117. And the record is
simply devoid of other evidence that he has suffered any kind of injury. The
generic allegations in the Complaint that the Museum display is “offensive and
repugnant to [Mr. Horvitz’s] beliefs, culture, and traditions” and that the cross
“marginalizes” him as an American citizen, J.A. 21, are not themselves admissible
at summary judgment. Cacchillo, 638 F.3d at 404. But even if accepted as true,
they show nothing more than a philosophical objection to the display, triggered
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apparently by reading about it in the news, essentially the same “injury” that was
soundly rejected in Valley Forge.
Mr. Bronstein likewise testified that he has “not been to the memorial,” has no
definite plans to go, and has never been to the Museum (since it is not yet open).
J.A. 95. He has no idea how the artifact will be displayed. “All [he] know[s] it is
going to be inside the museum.” J.A. 96. He concedes that no one would ever
“physically stop [him] from going in,” but has nonetheless self-determined that
“[i]f the cross is there [he] will not be able to go.” J.A. 95. He also testified that “at
times” he was “continuing to suffer possibly slight depression, headaches, anxiety
and mental pain and anguish” and has “tried to keep away from the site” to
“control” his alleged injuries. J.A. 102.
While this testimony at least qualifies for consideration at the summary
judgment stage, it is no different than the allegations made on Mr. Horvitz’s
behalf, except perhaps in degree of intensity. But the mere difference in intensity
of disagreement with the Museum’s action is insufficient to trigger standing.
Valley Forge, 454 U.S.at 486. Mr. Bronstein’s alleged “injuries” are no more direct
an personal to him than to any other person in the U.S. who vehemently objects to
the display and determines not to visit it. Id. at 487 (“claim that the Government
has violated the Establishment Clause does not provide a special license to roam
the country in search of governmental wrongdoing”).
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Finally, Ms. Everhart also testified that she has “not visited the [M]useum yet,”
although she intends to go after it opens. J.A. 109-11. She does claim to have
suffered from “dyspepsia,” J.A. 114, although she experienced it “most vividly”
because of the cross before it was ever moved to the Museum. App. J.A. 114.
Again, her assertion goes only to the intensity of her disapproval of the cross
generally, not to any showing of injury directly and personally to her as a result of
the Museum display.
In sum, none of the Individual Members has any injuries that are “direct and
personal” to them. There is no allegation of unconstitutional action in their “own
backyards” as in Southside, or someplace “functionally analogous to [their] own
home” as in Sullivan. They have not shown that they are being kept from using
essential government services that are close to their homes as in Cooper, or that a
religious display in connection with such services (available only from the
government) is so extensive that it essentially amounts to proselytizing, also as in
Cooper.
In addition, the indicia of state action in this matter is so slender that it further
demonstrates that none the Individual Members could possibly have suffered any
cognizable injury.4 The only relevant action by the Port Authority was in donating
4 At summary judgment the Port Authority and Museum both argued that the decision to display the artifact did not involve state action. Although they have not renewed that argument on appeal, the Court may still consider it for the purpose of
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the artifact, which was unavoidably in its possession from the ruins of the World
Trade Center, to a museum dedicated to memorializing the events at Ground Zero.
The American Atheists have not alleged that the donation itself violated the
Establishment Clause. But even if they had, their mere observation of that
allegedly wrongful conduct would not give them the right to sue the Port
Authority. Cf. Valley Forge, 454 U.S. at 485-86 (no standing for psychological
injury from observing federal agency’s allegedly unlawful transfer of property to
religious order); Catholic Conference, 885 F.2d at 1025 (no standing for
psychological injury suffered by observing federal agency’s allegedly favorable
treatment of pro-life religious organizations).
Similarly, it is undisputed that the Museum had sole authority over the decision
to display the artifact. See Dist. Ct. Dkt. 54 at 8; Dist. Ct. Dkt. 60 at 5. And there is
no evidence that government funds had any impact on that decision. In this
context, an offended observer cannot have standing to challenge the Museum’s
private decision to display a historical artifact that is entirely within the scope of its
mission just because the observer lives in the same city where the Museum is
located.
determining whether there has been state action sufficient to cause an injury for standing. Thompson, 15 F.3d at 248 (“[W]e are required to address [a standing] issue even if the court[ ] below [has] not passed on it ... and even if the parties fail to raise the issue before us.”) (citation omitted).
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A standing doctrine that would grant essentially any offended observer standing
to sue the privately-owned Museum for its decisions regarding what to display,
simply because the Museum has received some public funding and is located in the
bystander’s home town, and thereby invoking the full force of the federal judicial
process, with the attendant hundreds of hours in attorney time, and hundreds of
thousands of dollars in attorneys fees, is no limiting doctrine at all. Whatever
vexatious challenges exist “concerning how to apply the injury-in-fact requirement
in the Establishment Clause context,” Cooper, 577 F.3d at 490—and certainly they
do exist—they are in no way manifest in this lawsuit. The Individual Members
have no injury that is “distinct and palpable” or “direct and personal” to them.
Their objections are simply the “noncognizable psychological consequences
produced by observation of personally disagreeable conduct,” Sullivan, 962 F.2d at
1108—the view of “separatists” to one degree of intensity or another, but by no
means distinguishable from the objections of any other separatist across the
country. The Individual Members simply don’t like the display, but that does not
give them standing to sue over it.
2. The Individual Members’ alleged injuries are not redressable by the remedies they seek.
In their opposition to the Port Authority’s and Museum’s motions for summary
judgment, and again on appeal, the American Atheists have unexpectedly
disavowed any intent to prohibit the Museum from displaying the artifact. They are
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now “convinced . . . that it [is] not the most desirable remedy.” Appellants Br. 2.
They do not “seek to re-write history or rip from museums all acknowledgment of
our country’s historical relationship with faith.” Id. Rather, they now desire only
some unidentified “contextual adjustment” to the manner in which the artifact will
be displayed. Id.
This about-face in litigation strategy, however, moots any standing that the
Individual Members might have had, because the injuries they claim are no longer
redressable under the new relief being sought.
Mr. Bronstein, for example, emphatically testified that even an impossibly
dramatic “contextual adjustment”—namely, adding a memorial of “equal size,
equal stature and equal position” for “every single one of 3,000 religions” in this
country—would still not satisfy him. J.A. 326. He repeatedly emphasized that, no
matter how the artifact is display, “[i]t is an injustice, it is unconstitutional to put
that religious icon into that museum.” J.A. 97. “[I]t would not matter what they put
around the cross[.] . . . It should not be on the property, forget about even the
museum, it should not be on the World Trade Center property.” J.A. 98. Even signs
providing context he claimed would be “totally ineffective.” J.A. 98. “I don’t want
the cross in there at all.” J.A. 326.
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Ms. Everhart concurred that “it would not matter how the museum displays the
cross beam, rather it is the display itself” that is “problematic.” J.A. 105-6, “It is
unconstitutional for that cross to be there on government property.” J.A. 107.
Thus, even if Mr. Bronstein or Ms. Everhart had properly alleged an injury
sufficient to give them standing, they have waived any relief that would address
the injury as they themselves describe it. By their own testimony, regardless of
how the display were “contextualized,” they would still have the same
psychological objection to the artifact’s display in the Museum. Thus, they have
mooted any standing they might otherwise have had.
C. American Atheists lacks standing as an organization.
American Atheists also lacks standing as an organization, either through its
members or in its own right. First, because none of the Individual Members has
standing, American Atheists cannot sue on its members’ behalf. Bldg. & Const.
Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138,
144 (2d Cir. 2006) (holding that an association may sue on its members behalf only
if its members “would otherwise have standing to sue in their own right”).
Moreover, American Atheists lacks any basis for suing in its own right. It has
not alleged that it is a taxpayer or that it could meet the narrow qualifications for
taxpayer standing. Nor has it alleged that it has directly suffered a cognizable
injury as a result of the artifact’s display.
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As for standing on its equal protection claim, American Atheists does allege
that “[o]n multiple occasions” it “publicly offered to provide a memorial for the
[Museum], at its own cost, to represent the approximately 500 non-religious
victims of the attack on the World Trade Center[,]” but that it has “never received
a response.” J.A. 28-29. In its appeal brief, it reiterates that it made at least one
such offer, citing as evidence a deposition that does not seem to be in the record.
See Appellants Br. 17 (citing “Kagin Decl., Ex. 3:”); see also J.A. 293-94 (Kagin
Decl. with no “Ex. 3”). Thus, there appears to be no evidence sufficient to support
this claim for standing at the summary judgment stage. See also J.A. 141 (Museum
director testifying that “[n]o one came to me and offered me anything.”)
But even accepting American Atheists’ allegations as true, they would still not
sufficient to create standing for at least two reasons. First, it is undisputed that the
Museum is not displaying memorials to various religions or individuals. It is
displaying actual artifacts from the ruins of, and the recovery efforts that followed,
the destruction of the World Trade Center. J.A. 141 (“We are not in the business of
providing equal time for faiths, we are in the business of telling the story of 9/11
and the victims of 9/11.”). Second, it is also undisputed that the Museum has
offered to display any actual “atheist” artifacts from the events of September 11 if
American Atheists could identify any, which it has been unable to do. J.A. 141 (“If
there were something that represented an atheist that was part of the recovery at
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9/11 I would have no problem including that in the museum.”); J.A. 142 (“[I]f
there were an atheist story that came out of the story of 9/11 . . . and it was so
central, so central to the story in the way that the recovery worker experience is
central to the story of 9/11, we would have hypothetically considered including
that. No such artifact ever came forward.”).
American Atheists cannot invoke standing simply by having offered (assuming
it ever did) some random memorial unrelated to 9/11 to the Museum and having
been rejected. Yet that is the best spin that can be put on its evidence. Because the
evidence—even in that best possible light—is still insufficient to create a genuine
issue of material fact as to whether the Museum discriminated against American
Atheists, it is also insufficient to support standing. American Atheists cannot
simply compel itself into standing by having offered items to the Museum that are
irrelevant to the Museum’s purposes. See Mehdi v. U.S. Postal Serv., 988 F. Supp.
721, 731 n.9 (S.D.N.Y. 1997) (Sotomayor, J.) (“[T]he fact that plaintiffs have
asked the Postal Service to put up a Crescent and Star and have been refused does
not constitute the ‘personal’ denial of equal treatment required to support
standing.”). For all these reasons, the American Atheists lack standing.
II. The Museum’s display of the artifact is neither an establishment as originally understood nor as recognized by this Court.
As understood by the Founders of the Constitution and as interpreted by this
Court, establishment of religion consists of several well-defined practices centered
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on government coercion of religious belief or practice. The Museum’s display falls
far outside these categories of practices and thus does not—and cannot—inflict
injury on the American Atheists.
A. At the founding, an establishment consisted of government control, government coercion, government funding, or assignment of government powers to church authorities.
At the time of the founding, the “essential . . . ingredients” of an establishment
took one of four forms. See Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part 1: Establishment of Religion, 44 Wm. &
Mary L. Rev. 2105, 2118, 2131 (2003). The first element of an establishment was
public financial support of the church. This took many forms—from compulsory
tithing, to direct grants from the public treasury, to specific taxes, to land grants.
Id. at 2147. The second element of an establishment was state control over the
institutional church. This control manifested itself in two ways that are startling to
modern eyes: the control of religious doctrine and the appointment and removal of
religious officials. Id. at 2132. The third feature of establishment was the coercion
of individuals’ religious beliefs and practices. This took three main forms:
compelled church attendance, prohibition on worship in dissenting churches, and
exclusion of dissenters from political participation. Id. at 2144, 2159, and 2176.
The last element of establishment was government assignment of important civil
functions to church authorities. States used religious officials and religious
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institutions for social welfare, elementary education, marriages, public records, and
the prosecution of certain moral offenses. Id. at 2171-76.
In sum, an “establishment of religion” had a very specific meaning for the
Founders. It consisted of government funding of the church, government control
over doctrine and personnel of the church, government coercion of religious belief
and practice, and government use of the state church to carry out civil functions.
Laws imposing these elements created an established church. Laws that lacked
these elements did not.
B. The Museum’s display of the artifact does not fall within any recognized category of establishment.
This Court’s Establishment Clause jurisprudence is in line with the historical
understanding of establishment. This Court has repeatedly recognized that there are
potential Establishment Clause problems with government funding of religious
entities, government control over religious doctrine, government coercion of
religious practices, or government use of religious entities to carry out civil
functions. Because the Museum’s display of the Artifact involves none of these
elements, it does not violate the Establishment Clause.
1. The Museum’s display of the artifact does not constitute impermissible government funding.
The first element of establishment is government financial support of religion.
In DeStefano, 247 F.3d 397, this Court considered whether state funding for the
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religiously-themed Alcoholic Anonymous (A.A.) program at a private alcoholic
treatment facility violated the Establishment Clause. This Court was clear that “the
Establishment Clause prohibits the expenditure of funds to aid in the establishment
of religion,” Id. at 407. It acknowledged, however, that the inquiry was fact-
specific and held that, while the mere inclusion of the A.A. program at the facility
was constitutional, the funding would have been problematic if, for example, the
facility was required to integrate religious organizations into its treatment
programs in order to receive funding. Id. at 410.
Elsewhere, this Court has noted that if a “government program is ‘neutral with
respect to religion,’” it “‘is not readily subject to challenge under the Establishment
Clause.’” Incantalupo v. Lawrence Union Free Sch. Dist. No. 15, 380 F. App’x 59,
62 (2d Cir. 2010) (quoting Zelman v. Simmons–Harris, 536 U.S. 639, 652 (2002)).
Here, there is no concern about discriminatory funding of religious practices. The
Museum will display a broad range of historical symbols, including the cross-
shaped artifact and “symbol steel” with depictions of “a Star of David, a Maltese
cross, the Twin Towers, and the Manhattan skyline.” J.A. 335.
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Setting also matters. Every court to consider the issue of whether a religious
object may be displayed in a publicly funded museum has adopted the view that
such displays are constitutionally permissible.5
2. The Museum’s display of the artifact does not constitute government control over religious groups’ practices.
The second element of establishment is government interference in the doctrine
or governance of religious institutions. A prime example of this type of violation is
Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). There, an African-American
Catholic priest brought a race discrimination claim against the Roman Catholic
Diocese and its Bishop. This Court held that if a court overruled the church’s
decision about a ministerial employee, it would become impermissibly entangled
“with religious doctrine.” Id. at 209.
This element of establishment is completely absent here. The Museum’s display
of the artifact has no impact on church polity, internal church decisions, or church
doctrine. It does not take sides in theological disputes or interfere with internal
church governance. And it does not declare official state doctrine. The artifact is
5 See, e.g., Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043, 1052 n.33 (9th Cir. 2010); Van Orden v. Perry, 351 F.3d 173, 181 (5th Cir. 2003), aff’d 545 U.S. 677 (2005); Elewski v. City of Syracuse, 123 F.3d 51, 61 n.10 (2d Cir. 1997) (Cabranes, J., dissenting); Allen v. Hickel, 424 F.2d 944, 949 (D.C. Cir. 1970); Brooklyn Inst. of Arts & Sci. v. City of New York, 64 F. Supp. 2d 184, 205 (E.D.N.Y. 1999).
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simply one of many symbols that helps tell the story of the September 11 rescue
and recovery effort.
3. The Museum’s display of the artifact is not government coercion of private parties to engage in religious activity.
The Establishment Clause likewise forbids the government from coercing an
individual to engage in religious practice contrary to her beliefs. This Court
invoked that principle in Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068
(2d Cir. 1996). In that case, a probationer facing a criminal sentence for drunk
driving was required as a condition of probation to attend A.A. meetings, which
included “explicit religious content” and “repeatedly turned to religion as the basis
of motivation.” Id. at 1075, 1076. The Court held that the religious content of the
meetings, coupled with both the county’s failure to provide alternative therapy
programs and the threat of incarceration to the probationer if he failed to
participate, violated the Establishment Clause: “Our ruling depends . . . on the
‘fundamental limitation[ ] imposed by the Establishment Clause’ that bars
government from ‘coerc[ing] anyone to support or participate in religion or its
exercise.’” Id. at 1075 (quoting Lee v. Weisman, 505 U.S. 577, 587 (1992)).
Again, this element of establishment is completely absent here. There is no
coercion: no one is forced to attend the Museum, or to view the artifact. There is
not even any religious activity. The artifact “express[es] many different
sentiments.” While some may find the artifact religiously significant, “it does not
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follow that the museum, by displaying [the artifact], intends to convey or is
perceived as conveying the same ‘message.’” Pleasant Grove City v. Summum,
555 U.S. 460, 476 n.5 (2009).
4. The Museum’s display of the artifact does not impermissibly cede government powers to religious organizations.
The last element of establishment is the assignment of important civil functions
to religious authorities. In Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294
F.3d 415, 418 (2d Cir. 2002), this Court struck down New York’s kosher fraud
statutes, which defined “kosher” as food that has been “prepared in accordance
with the Orthodox Hebrew religious requirements.” The statutory reference to
Orthodox standards led the state to delegate its power to the Orthodox rabbis who
sat on the state advisory board on kosher law enforcement. Id. at 424. As this Court
explained, not only did the laws unconstitutionally prefer the Orthodox definition
of “kosher” over other ones, but they also ran “afoul of ‘the core rationale
underlying the Establishment Clause[, which] is preventing ‘a fusion of
governmental and religious functions.’” Id. at 428 (quoting Larkin v. Grendel’s
Den, Inc., 459 U.S. 116, 126 (1982)).
Here, there is no such fusion of governmental and religious functions. The
Museum’s display of the Artifact does not task religious bodies with carrying out
functions that properly belong to the State alone, such as interpreting and enforcing
its statutes. The display thus does not violate the Establishment Clause.
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CONCLUSION
The American Atheists are disgruntled about the display of the Ground Zero
cross. But that does not entitle them to invoke the judicial system to make
themselves feel better. The artifact is part of the history of September 11 and
appropriately belongs in the September 11 Museum. It causes no cognizable injury
and is so far removed from the concerns underlying the Establishment Clause that
the Court should not hesitate to dismiss this case for lack of standing.
Dated: November 15, 2013 Respectfully submitted,
/s/ Eric S. Baxter Eric S. Baxter Asma Uddin Diana Verm 3000 K St. N.W., Ste. 220 Washington, DC 20007
(202) 955-0095 Counsel for Amicus Curiae The Becket Fund for Religious Liberty
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENT,
AND TYPE STYLE REQUIREMENT
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6979 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii). In preparing this certificate, I relied
on the word count program in Microsoft Word.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in 14-point font of Times New Roman.
Dated: November 15, 2013 /s/ Eric S. Baxter Eric S. Baxter
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